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State College Marijuana Decriminalization is Misunderstood

On behalf of McClenahen Law Firm on Friday, August 19, 2016.

"Marijuana is decriminalized in State College! It is now the equivalent of a parking ticket!" Thanks to some irresponsible and inaccurate media reports coupled with a misunderstanding of criminal law, this is the misinformed belief a lot of Penn State students and Centre County residents now have. Given all the confusion generated by this ordinance, it is incumbent upon criminal defense lawyers like me to set the record straight. The bottom line is that the decriminalization ordinance is essentially symbolic, and will have little if any effect on the Penn State community.

First of all, a local government does not have the authority to completely decriminalize marijuana, because a local government cannot override state criminal laws. Marijuana and drug paraphernalia remain crimes under the Pennsylvania Drug, Device and Cosmetic Act. The new State College Borough marijuana ordinance gives the State College Borough Police the option of charging a defendant with a summary offense local ordinance instead of the conventional, criminal charge, which leads to fingerprints, photographs and a criminal record with the Pennsylvania State Police and FBI.

The borough ordinance carries a fine of $250 for possessing less than 30 grams of cannabis and a $350 fine for smoking marijuana in public, while possession of a small amount of marijuana under state law carries the following maximum penalties: a fine of up to $500, incarceration or probation not to exceed 30 days and a six month driver's license suspension. Additionally, a conviction of any drug possession offense renders one indelible for federally-subsidized student loans. A person convicted of the borough ordinance would not face jail time or probation, a driver's license suspension or student-loan ban. An ordinance violator would also not be fingerprinted and photographed at the Centre County Correctional Facility.

Contrary to what at least one local media outlet reported, the decriminalization ordinance does NOT make possession of marijuana in State College Borough the equivalent of a parking ticket! If you pay a parking ticket on time, there is absolutely no record of it for anyone to find, not to mention the fact that potential employers are not going to look at a parking ticket the same way as marijuana possession charge. Even though a person charged with an ordinance violation will not be in the FBI and State Police criminal record data bases, he or she will have a record, which anyone with internet access can see. The docket sheet will be freely available on the AOPC (Administrative Office of Pennsylvania Courts) website, just like every crime from underage drinking to homicide.

Most background checks used by employers and landlords are not done by the FBI and State Police. Rather, most background checks are performed by private companies, which will pull a background check on prospective employees and tenants for a small fee. These background check services rely upon publicly available records on the Internet, such as the docket sheets on the AOPC website. Thus, if you plead guilty to marijuana possession under the borough ordinance, it is going to show up on most background checks, and I doubt that the typical employer is going to care whether you were charged with a borough ordinance or a crime when the underlying conduct is exactly the same.

That being said, the decriminalization ordinance will likely make very little difference for the thousands of cannabis consumers in Happy Valley. The State College Police already de facto decriminalized possession of a small amount of marijuana years ago by making it the lowest law enforcement priority, an approach common in American cities where there is "real crime" to deal with. In other words, the State College Police are not actively pursuing marijuana smokers, but they do still actively pursue cannabis sellers through time-consuming investigations. When State College Police respond to a noise complaint in an apartment building and happen to smell weed, they usually ignore it. This is because they are already overwhelmed with disorderly and violent drunk people, who negatively impact our community. By contrast, marijuana smokers are not bothering anyone.

This is not to say that State College Police never charge anyone with small amount of marijuana and drug paraphernalia. They do file such charges, albeit at a small fraction of what we see from the Penn State Police. Most commonly, this involves a "collateral damage" scenario, where the police get a search warrant for a house or apartment after a resident sold drugs to a confidential informant or undercover cop. If the subsequent search reveals that roommates had marijuana and/ or drug paraphernalia for personal use, these collateral damage roommates will normally be charged with misdemeanors, while the guy who sold drugs will be charged with felonies. Additionally, those brazen enough to toke in public or in parked vehicles should not expect the State College Police will look the other way.

I am curious to see whether the State College Police will start handing out borough ordinance citations for marijuana possession in cases, which would have been completely ignored in the past. It takes a lot less time and resources to file a citation than to file criminal charges, which require a mandatory court appearance for the police officer.

The Penn State Police take a very different approach to marijuana than their Borough Police brethren. The Penn State Police do actively enforce the marijuana laws. They do not ignore the smell of weed emanating from dorm rooms. In fact, they will even wake up a magisterial district judge at 3:00 a.m. to get a search warrant, if a student denies permission to search his or her dorm room. Consequently, almost all the small amount of marijuana and drug paraphernalia charges we see are filed by Penn State Police. And the Penn State Police do not file borough ordinance citations, even if an offense occurs on the parts of Penn State's campus, which are technically in the borough. If you are caught with marijuana on campus, you will still be charged criminally.

It is important for members of the Penn State and State College cannabis community to know that the new ordinance has not significantly changed things. You should not suddenly become brazen and carless about your cannabis consumption, especially if you live on campus. And if you live off campus and are charged under the new ordinance, you absolutely, positively should not plead guilty under the mistaken belief that it is just like a parking ticket! You should first talk to a criminal defense attorney, who may be able to help you avoid a conviction, which could negatively affect your future job prospects.

Matt McClenahen is a Penn State alumnus, State College criminal defense lawyer and member of the NORML Legal Committee.

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